A lot of people have discussed this section of Judge Colleen McMahon’s January 2, 2013 ruling dismissing ACLU and NYT’s FOIA for memos and other documents related to the targeted killing of Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actionsthat seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. [my emphasis]

But I’m not aware of anyone commenting at length on the section she titles, “Constitutional and Statutory Concerns about Targeted Killings,” a 5-page discussion of assessing targeted killing in terms of due process, treason, and other laws.

While the section is not entirely off point — she explores some of the legal questions raised in ACLU’s FOIA, though as I’ll show, she expands on the questions ACLU raised — the section is completely extraneous to her task at hand, determining whether or not the government has to turn over its legal justifications for killing Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

She recalls how central due process was to the founding of our nation.

As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….

The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.

She reminds that the Treason Clause appears in Article III of the Constitution, not Article II.

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

Thus far, she has just made it abundantly clear she meant her earlier comment about “actions that seem on their face incompatible with our Constitution and laws” seriously (and she addresses points — due process and Treason — the ACLU brought up explicitly). She interrupts her work of assessing the FOIA case before her to make it very clear she believes the Awlaki killing violated key principles of our Constitution.

But I’m particularly interested in the last two pieces of law she raises to suggest she thinks the Awlaki killing might be illegal. First, she looks at 18 USC 1119.

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

18 USC 1119 is, of course, the passage of the white paper I focused on here, which the Administration dismisses, in part, this way.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And I’m such a geek that I actually mapped out what Eric Holder said in his Northwestern Speech and what actually appears in the white paper. The discussion on section 1119 is, by far, the topic explored in greatest length in the white paper but left unmentioned in Holder’s public spin of the legal thinking behind Awlaki’s killing. Section 1119 is something that Administration was very worried about, but didn’t want the public to know how worried they were.

McMahon’s discussion is interesting, too, because it’s somewhat tangential to the list of things ACLU asked about. They ask for “the reasons why domestic-law prohibitions on murder … do not preclude the targeted killing of Al-Awlaki.” And their original FOIA letter cites the same Dore article that McMahon cites. The ACLU never mentions section 1119 by name. But McMahon does, honing in on the statute that — at least given the relative focus of the white paper — the Administration seemed most concerned about. (She did get classified declarations, so it’s possible she got the white paper, though her comments about not needing to see the one OLC memo identified in the Vaughn Indices would seem to suggest she had not seen it.)

Then McMahon brings up something that doesn’t show up in the white paper (but one I’ve brought up).

There are even statutory constraints on the President’s ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding “may not authorize any action that would violate the Constitution or any statute of the United States.” 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.

McMahon is, by this point, basically arguing that the Article II rationalizations that end up in the white paper (whether or not she had seen it) are invalid. The President cannot authorize something that violates the Constitution and US law, not even for (or especially not for) a covert operation the CIA would conduct.

Mind you, she’s a bit more gentle in her legal condemnation of the argument.

So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a “hot” field of battle. [my emphasis]

But she refutes, in 5 pages, not only what the government argued in the white paper (including its extensive section 1119 argument), but also the Treason Clause question they didn’t address.

And look at what she’s refuting here. She says the Executive “unilaterally authorized” Awlaki’s killing. She suggests they did so via a covert op.

In this section, she doesn’t once mention the Authorization to Use Military Force the Administration tries to yoke CIA actions onto, in spite of her discussion of the AUMF earlier in her ruling. (Update: Though she does introduce her Treason section by saying, “If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he is a traitor.”)

In Colleen McMahon’s 5-page detour, having read a slew of classified declarations on the legality of the Awlaki killing — including CIA’s rationale for invoking Glomar — she addresses this killing as a covert operation authorized “unilaterally,” with no mention of the AUMF attaching Congressional authorization to the killing.

Perhaps that’s just her skepticism about whether the AUMF applies away from the “hot” battlefield; elsewhere, she notes that Awlaki “was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).” That is, perhaps she just doesn’t buy the Administration’s arguments about the global battlefield.

But I find it very telling that a Judge who has read classified declarations from several agencies (and went on to write her own classified ruling, in addition to the public one) assesses the legality of the Awlaki killing as if it were solely based on Article II authority.

So many people seem to presume that things like 18 USC Sec. 1119 (passed in 1994) and 50 USC Sec. 413b (“post” WWII) may be ignored because they reflect a “pre-9/11 mindset”. For such people, and there seem to be many, this also explains why they seem eager to overlook the plain text of the US Constitution and Bill of Rights: since “everything changed on 9/11″, ipso facto it’s now appropriate to start from the presumption that the “president must keep us safe” so every act must be subject to this “job responsibility”.

Not so. Never was. Isn’t now. And the reason the administration is so royally bolloxing up providing an answer to the fundamental problem of justifying how the executive unilaterally may execute U.S. citizens is the fundamental truth that it’s not permitted (see Magna Carta and everything thereafter) and, therefore, each successive “justification” argument is either obviously invalid or itself creates and exposes errors, weaknesses and constitutional bars not previously contemplated and not easily overcome. And that’s why there are a plethora of currently undisclosed “OLC memos” from the Obama administration, following upon a plethora of “withheld/debunked” Bush memoranda and all grounded in the Cheney chimera of a “unitary executive” which is itself an egregious and intentional misinterpretation of the Constitution — specious when first postulated by a bunch of discredited neocons yet being stretched even thinner in seeking to justify unilateral executive control of government. It started wrong, it’s been getting wronger, and the idea of a unilateral presidential execution “authority” is simply the most recent, and most extreme, illicit extrapolation.

In “the old days”, pre-9/11 and when there were rules against this shit, bad shit still happened. But nobody thought that meant the bad shit should be codified. Instead, there was the concept of Accountability and the concept of Clemency. Really. If spies were caught, they were tried. Hell, the beginning of every Mission: Impossible TV show involved a mission assignment on a tape that always ended “if you or any of your IM force are captured, the Secretary will disavow any knowledge of your actions”; even President Bartlett and the Chariman of the Joint Chiefs, on West Wing, when they decided they needed to have a presumed terrorist assassinated, all acknowledged and understood that if anyone learned of their roles they would go to jail. Indeed, it was an increasing discomfort over the degree to which things seemed to be happening “clandestinely” that statutes like 18 USC 1119 got passed — to reinforce the continuing applicability of the guiding principles of American jurisprudence and to reiterate that “we don’t work thay way” and that freelance assassination isn’t to be condoned.

No longer. Notwithstanding Magna Carta, the Constitution, the Cold War, 50 USC 413b and 18 USC Sec. 1119, all these people are running around today trying to explain why it’s OK to assassinate a US citizen, including whether that guy was “deemed” “treasonous”, “operational”, “imminent” or merely unpleasant. Wrong is wrong, they’re not going to come up with a “clean” way around the prohibitions that are, and for much more than our lifetimes have been, plainly stated and clearly understood.

If somebody commits murder, it’s a crime. From time immemorial, crimes are addressed via trial and sentence, with sentencing and clemency addressed to exculpatory explanations. In our “post-9/11″ world, this is ignored. In the rush to call the most blatantly proscribed, illegal and unconstitutional executive activities “protecting Americans” — and to legitimize such actions in advance — hordes of people are now grappling with how to “distinguish” hundreds of years of our history and law. Trying to write “rules” to codify what has never been legal, and tangled in the practical ramifications of phraseology that just can’t be limited in any rational way once the fundamental wrongness of the concept of depriving a citizen of “life liberty and property without due process” is deemed “subject to exception”.

And how are they doing it? Marcy has it right: call it “pre-crime” and do whatever it takes to stop that. This cannot be fit into the legal structure of civilized society, and thus the effort to rationalize it is pretty convoluted. But that’s all that’s going on. And that’s what releasing however many “versions” of OLC memos is more than likely going to demonstrate plainly.

Thanks, Marcy, for going back to the discussion of the observations included in those five pages by Judge McMahon. It’s “dicta” there solely because the administration if refusing to put its cards on the table. But how many shots do they get at failing to articulate a competent, cohesive and knowable structure for the powers the administration is claiming before people come to grips with the fact that the powers here being claimed were knowingly and intentionally foreclosed when the Rule of Law was agreed to?

The ‘abbreviated pundit roundup’ this morning at the Great Orange Satan had a quote from Leonard Pitts at the Miami Herald, part of which follows.

In other words, “imminent” doesn’t mean “imminent.” And if U.S. intelligence — which we all know is infallible, right? — determines you to be a member of al Qaida, that determination, absent any evidence of a planned attack, gives the government the legal pretext to vaporize you. Worse, the government contends this may be done without oversight, judicial or otherwise. The president becomes, quite literally, your judge, jury and executioner.

I added in the comments on this that there’s no requirement that the President
be the one deciding.

The utter simplicity with which Judge McMahon lays out her concerns is stunning. I may have to read this with my son to assess his take on its simplicity; an average high school student with American History and Government under their belt should be able to understand her points easily.

She’s also sidled up to another issue–is terrorism by a non-state actor a criminal act that should be prosecuted, or a casus belli? She doesn’t tackle it, but she’s walked right up to it.

@PeasantParty: Her discussion was narrower than whether the US can exercise its laws on the globe. But she did a great job of picking at the two-faced nature of US gov’t’s approach — either it’s an assassination, and it’s therefore illegal, or it’s not an assassination, and it’s illegal because no due process. If it’s a war, they still have due process rights and all other laws apply, and if it’s terrorism, they still have due process rights–but they’re calling it terrorism, so where’s the war (which we won’t get into here), and oh yeah, where’s the due process?

So good, like the old Who’s On First gag. Almost makes me want to cross-stitch all 5 pages on a pillow.

@Rayne: Well, 1) she was out of her lane in this passage in the first place. That she even dedicated 5 pages to it is pretty remarkable (and I suspect the embrace of a drone court is in part a response to this). and 2) She also managed to get what appears to be confirmation that this was a covert CIA op. Which may be why she sent her opinion to FBI to vet for classified information, and not CIA. Because I can’t believe the CIA would have let her keep this information in the opinion.

If the actions “seem on their face incompatible with our Constitution” then it seems natural that she would ground her analysis of its potential legality in the President’s Article II authority. Perhaps her use of the term “unilaterally authorized” refers to the President’s defense of his use of force based on, ultimately, his Article II powers, at least as a matter of Constitutional law.

contest – see if you can find the obvious straight-forward statement that the president may committ illegal acts if he deems it in the interest of “natjonal security”.

for extra reward see if you can find any use of the phrase “national secutity” or even an obvious substitute for it in the origi al document.

you WILL NOT!! the ENTIRE emphasis was on limiting federal gov’t power. krauthammer (and other bush/ obama apologists) surely knows at least this much.

these claims of “article II” powers allowing a president to act illegally – torture or assassination- are entirely modern constructs of the modern authoritarians/tories/royalists seeking to take over the american national government and run it as a corporate-friendly democratic monarchy.

@Rayne: Yes, however I was responding more to your thoughts on casus belli.

I think that these operations are determined to be a cause for war, especially for the countries we entreat our insane laws with, which are illegal outside of a definitive WAR ZONE. Since no war has actually been declared between two offical nations, that really makes the entire ruling tyrannical.

@pdaly: As to Margolis – he was never directly in charge of OPR as a department head; rather in his position as Associate Deputy AG (and the most senior career track person at DOJ), Margolis has had final review authority over OPR determinations. And, yes, he is quite unfortunately still there.

OLC certainly wrote the underlying actual hard memos. As to whether OLC wrote the “White Paper”, that is far less clear. It may have been written outside of OLC based upon an amalgam of memos (which is my bet).

@pdaly: There are people at DOJ who swear the only way Margolis will leave his position and office is in a box. I believe it. About three weeks ago, the guy who had spent two plus decades at DOJ as a career track attorney being groomed to be Margolis’ replacement, Scott Schools, finally gave up and quit because he decided Margolis would never leave and he had no room left for advancement without it..

@What Constitution?: Out of curiosity, do you happen to know if there was any label like “pre-Pearl-Harbor mindset” (to parallel “pre-9/11 mindset”) that was used to brush away objections to the US gov’t locking up US citizens of Japanese descent in the middle of the desert during WWII? And if so, can we take a look at the apologies that were later made to said US citizens of Japanese descent when we came to our senses? I just want to get an idea what the apologies for all the current nonsense might look like, since I’m worried that I won’t be around to see them in person, since the GWoT isn’t about to end any time soon.

If only the Hon. Ms. McMahon had the courage to do what judges, such as those in her position, must sometimes do and leap over “the thicket of laws and precedents” and render the right decision based on the Constitution.

Her words in “Constitutional and Statutory Concerns about Targeted Killings” shows she knew this would be the right thing to do and essentially enunciated such a decision.

It’s a good thing Jefferson didn’t attempt a foray through the legal thicket lest we still be litigating our independence.

Bravo Marcy! Very high quality post. I don’t know if this 5 page exceprt qualifies as dicta, but it will certainly be useful in subsequent challenges to the extra-Constitutional powers claimed by this POTUS.

P.S. I find it interesting that every unitary executive power grab begins and ends w/Article II, but it’s funny how they gloss over the POTUS oath (found in Art. II): “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

*Doesn’t say anything about defending the country and its citizens, but it does stress allegiance & fidelity to the Constitution.

P.S.S. Oath taken by military officers: “I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

here is one from right field, Does the Dawn Johnson’s OLC candidacy play any role in this? Would she have withdrawn her candidacy as a show of lack of support? Would she have been kept in the loop? Was this the reason the administration never really pushed for her? I think, they NEVER wanted her.

Actually, I have to go back and read the opinion to see whether she invoked Youngstown. Because (a) the statutory prohibitions on doing the things which are being done constitute, under Youngstown, a place where Congress has spoken and the Executive’s power is at its nadir and (b) ample reason the whole hairball idea of a targeted killing court has come up. If Congress rewrites the law, then under Youngstown it’s retroactively OK….

@Skilly: Johnsen was out of the loop within a month or two of Obama’s inauguration in 2009. They just strung her out publicly for show. So, highly doubtful there is any relationship between targeted killing and her except in a more general policy sense of where they were going and what she stood for.

@Stu Wilde: Actually, McMahon makes precisely that argument later in her opinion, in a footnote addressing the claimed Presidential power to protect the nation from any imminent threat of attack:

Actually, the President’s oath of office – which appears in the text of the Constitution itself, at Art. 2, Sec. I, Cl. 8 – requires him to promise that he will faithfully execute his office and “preserve, protect and defend the Constitution of the United States” – not the territory of the United States, and not the people of the United States. It seems that the Founders subscribed to the notion that, as long as the President looked out for the Constitution, the country would be safe.

Plus, as I’ll show in my last “Department of Pre-crime” post, the history of the NDAA (and MCA and MCA 2.0 and DTA) shows they will utterly roll them on the statutory language authorizing such a court, such that it would just permit this stuff while providing it further veil of secrecy.

you make such an ass of yourself, lefty, when you try hard to land a punch for no good reason.

my point was not that article II powers had not been acreeting.
it was that there had been more public opinion talk about article II powers in the last decades than in all the other time i have observed american politics.

the reason i am quite sure is that citing article II is the easiest way to rationalize politically and get judicial ratification for any and every presidential power one can imagine.

but article II powers are really just an elaborate string of imaginative enlargements of presidential power based on wards and phrases that don’t imply what they are taken to imply at all.

article II powers are like the wizard’s sheet or the emporers new clothes. it is all a legal house of cards that depends on
what we will not challenge.

indeed she does. her argument is made all the more powerful, by her comment that she cannot find a path through the thicket of 150 yrs of judicially ratified article II war-time embellishments,

but she can say, and does so with courage and candor, that this kind of executive behavior can NOT be, manifestly is NOT, in keeping with our fundamental, establishing compact – the constitution – specifically, it clear and repeated ptohibition on our gov’t arbitrarily taking a citizen’s liberty, property, or life.

if i could, i would kneel and kiss judge mcmahon’s judicial signet, something this proud citizen would never do for president, pope, or king.

we have had so much empty blather in the past decade about “heroes”.

to my mind judge mcmahon is a genuine heroine – one of the very few to emerge from the decade of the terrorism wars.